To organize and publish S2KM's findings and analysis, S2KM is developing, and plans to publish and update, a related public wiki titled "Structured Settlements 2009". Here is a preview of this S2KM public wiki home page.

May 03, 2009

The Society of Settlement Planners (SSP) and the National Structured
Settlement Trade Association (NSSTA) hosted sequential annual meetings
the week of April 26 in Washington, D.C. This blog post begins S2KM's
reporting about those meetings.

SSP's meeting (titled "Securing the Financial Needs of Injury Victims
and their Families") was notable for the diversity of attendees, topics
and viewpoints. Several NSSTA members were among the attendees as well
as settlement planning and secondary market attorneys, annuity and
trust providers, primary and secondary market intermediaries, authors,
bloggers and law students.

Former NSSTA Executive Director Randy Dyer was a featured SSP speaker. Dyer spoke twice and provided:

A definitive history of structured settlement insolvencies - annuities and bond trusts.

An allegorical lesson about how to jump start structured settlement annuity sales.

Kevin Mack, former Director of Travelers' structured settlement program
and former Chairman of NSSTA's legal committee, offered insights to
"in-house" structured settlement programs. Mack made several
recommendations for growing and improving the structured settlement industry including: more plaintiff intermediaries; improved education
for judges and plaintiff attorneys; plus mandatory "disclosure" of
structured settlement compensation and conflicts of interest.

Joseph Tombs, SSP's new President and Chairman of the Registry of Settlement Planners (RSP) Board of
Directors spoke about three topics. Tombs:

John Bowman, Director of Federal Relations for the American Association
for Justice (AAJ), discussed how the 2008 elections have impacted
AAJ's political priorities. One primary
AAJ objective: keep medical malpractice out of anticipated health care
reform.

March 21, 2009

Tim Nay, a partner in the law offices of Nay & Friedenberg,
is one of the leading special needs and elder law attorneys in the
United States. As an adjunct to his legal career, Nay was also educated
as a clinical social worker and practiced in that profession for many
years.

Among his professional contributions, Nay is the founding
President and a Fellow of the National Academy of Elder Law Attorneys (NAELA)
and continues to participate on NAELA committees, task forces and
educational programs. Nay is a Director of the Society of
Settlement Planners (SSP)
as well as a founding member, former Director and officer of
the National Association of Medicare Set-Aside Professionals (NAMSAP). Nay is a member of the Academy of Special Needs Planners (ASNP)
and serves on ASNP's Advisory Board.

On the state level, Nay is a
member of the Oregon and Washington Bar Associations. He is a past
President of the Oregon Gerontological Association, past Chairman and
founding member of the Elder Law Section of the Oregon State Bar and past President of the Oregon Chapter of the Alzheimer’s
Association.

Earlier this month, at the ASNP 2009 Annual Meeting, Nay participated as Chairman and presenter for the ASNP educational program titled "Special Needs Settlement Planning" (SNSP) following which he provided S2KM with this exclusive interview.

S2KM: Greetings, Tim. In addition to your legal practice, how do
you find time for, and what motivates, your many professional
association activities?

Nay: Planning educational conferences has evolved into a small
passion of my practice. My role as CEO of Nay & Friendberg, as well
as our practice model, allows me to commit time to plan and present at
conferences related to our practice. I always learn something.

S2KM: What do you consider your most important professional accomplishments?

Nay: Helping people and touching lives positively have been the
most rewarding aspects of my career. When a client sends a handwritten
"thank you" note to me or a member of our team, it means a lot. I am
proud of my educational accomplishments including graduate degrees in
counseling psychology and clinical social work prior to law school. My
professional association work is a continuing source of many friendships and
shared accomplishments.

S2KM: What connections do you see among elder law, special needs law and settlement planning?

Nay: Elder law practitioners champion special needs trusts,
initially in the context of estate planning. Bringing special needs
trusts to settlement planning is a logical extension of what elder law
attorneys have been doing for more than 20 years. To contribute to the
settlement process at the highest level, however, special needs
attorneys must understand, or at least be aware of, other substantive
legal issues important to the settlement process.

S2KM: How do you define "special needs settlement planning"?

Nay: Our firm views settlement planning as a process. We use a
team approach which I supervise. Sandy Conley, senior legal assistant
in our probate department, coordinates our special needs planning
cases. She also drafts the
settlement documents and papers in the state court proceedings to establish any
guardianship and/or conservatorship. Jackie Appleton, senior legal assistant in our
Legal/Financial department, is a third party special needs expert. Whenever third party planning is appropriate for the family
of an injury victim, she drafts the documents and supervises their
execution. Other members of our probate and estate
planning staffs frequently assist our settlement planning process. Whenever difficult legal issues appear in settlement planning
cases, we triage the case with our attorney staff as well as Sandy and Jackie.

S2KM: In addition to special needs trusts and estate planning,
what potential roles exist in settlement planning for special
needs attorneys?

Nay: Some special needs attorneys also serve as judges; mediators; trustees;
conservators; and guardians for minors or incapacitated adults. All of
these roles help prepare special needs attorneys to best serve injury
victims and their families.

S2KM: In your experience, what impact do 468B Qualified Settlement Funds (QSFs) have on settlement planning?

Nay: Use of 468B QSF trusts allow defendants to conclude their settlement liabilities and responsibilities so other planning priorities such as liens, allocations, government benefits and funding options can be
addressed by plaintiffs and their advisors in a less-adversarial context.

S2KM: What do you like and dislike about structured settlements and structured settlement consultants?

Nay: I like the product. In most of our catastrophic injury
cases, structured settlement annuities are part of
the settlement package. What many special needs attorneys, including
myself, do not like are the business practices of some structured
settlement consultants: over-structuring; single product focus; limited
product comparisons.

Nay: The feedback from attendees has been outstanding. Everyone came away with important new learning.

S2KM: What additional actions are needed to improve and grow the "special needs settlement planning" market?

Nay: For the "special needs settlement planning" market
to grow, all stakeholders must know when a special needs trust can
improve life quality for the injured party. These stakeholders include
plaintiff and defense attorneys,
judges, mediators, and structured settlement consultants, as well as injury victims and their families.
Without that knowledge, the settlement will be gone quickly, leaving
the injury victim in grinding poverty.

S2KM: Thank you, Tim, for this interview. Congratulations for your continuing professional contributions and accomplishments.

March 08, 2009

The Academy of Special Needs Planners (ASNP) hosted its Third Annual Meeting March 6-7, 2009 at the Rancho Bernardo Inn in San Diego, California. Titled "Special Needs Planning in an Era of Change", the program devoted one day of educational discussions to "special needs settlement planning" (SNSP) which ASNP characterized as a "new opportunity" for special needs attorneys.

The ASNP speakers included leading special needs attorneys and
plaintiff structured settlement consultants who provided detailed
analyses of the following SNSP topics:

Meligan and Whitmore described the related topic of "settlement planning" as both a profession and a process. According to Meligan and Whitmore: "Settlement
planning is a profession that helps recipients of settlement proceeds
use their proceeds to achieve their post-loss goals and transition
successfully into their post-settlement financial lives". Meligan
and Whitmore recommended utilizing settlement planning professionals
with: credentials; loyalty to plaintiffs; planning approach; and
experience. Meligan and Whitmore also described "settlement planning" as part of a three-part process preceded by litigation and followed by financial planning.

von Saucken also described "settlement planning" as a process or "continuum"
subject to changing rules that require adjustments in settlement
planning prototypes. von Saucken presented a settlement planning
timeline:

Agreement on settlement amount;

Lien reimbursement;

Medicare/Medicaid preservation trust;

Structured settlement paperwork;

Disbursement.

By comparison, during his recent presentation at the NSSTA 2009 Winter Meeting, Joseph DiGangi defined "settlement consulting" as a four-stage process:

Analysis

Planning

Implementation

Monitoring

Most of the ASNP presenters identified and addressed "structured settlements" as an essential component of SNSP. As part of his 468B QSF comments, Risk reviewed several structured settlement definitions
including the tax definition in IRC section 5891(c)(1). To S2KM's
knowledge, Risk thereby becomes the first structured settlement primary
market participant to review the IRC section 5891
tax definition for "structured settlement" during a national
conference. By comparison, not a single NSSTA or SSP conference speaker
has reviewed the IRC Section 5891 definition for "structured settlement" since IRC 5891 was enacted in 2001. Risk also becomes, to S2KM's knowledge, the first conference speaker to link IRC 468B and 5891 which S2KM views as a strategic SNSP construct.

Several ASNP speakers addressed various types of settlement trusts in the context of SNSP. Browning highlighted settlement trust "due diligence"
as an increasingly important SNSP issue. Three settlement trust
providers, but not one structured settlement annuity provider,
exhibited at the SNSP conference.

What changes are impacting SNSP?

ASNP speakers identified and highlighted the following changes impacting SNSP:

How the claim management SNSP model differs from the 468B QSF SNSP model; and

How to develop multi-professional SNSP teams and knowledge networks.

How the current financial crisis impacts SNSP;

Proposed and/or needed SNSP legislative and regulatory changes.

What new opportunities does SNSP create for special needs attorneys?

Traditional special needs legal practice and education have focused on
special needs trusts, estate planning, government benefits and probate. As the ASNP conference demonstrated, SNSP encompasses traditional
special needs expertise, but also new fields of related legal practice.

Four leading SNSP legal treatises (listed alphabetically by title) define these new fields of SNSP legal practice:

The ASNP presentation by speakers Johns, Lazarus and Urbatsch titled "Marketing to the Trial Bar" offered valuable advice for special needs attorneys as well as other SNSP stakeholders. S2KM'sstructured settlementtransaction diagram, developed in 2005 with graphic artist Keith Burtoft, may help special needs attorneys identify other potential SNSP clients and roles. In addition, as S2KM's blog post "Structured Settlement Surveys" demonstrates, further market research would be useful to define and grow the SNSP market.

Congratulations to ASAP and SNSP program Chairperson Tim Nay for the timely and educational SNSP program. Prior S2KM blog posts about ASNP:

March 31, 2008

The Second Annual Meeting of the Academy of Special Needs Planners (ASNP), titled "Beyond Nuts & Bolts: When Theory Meets Reality",
took place March 27-29, 2008 in New Orleans. Open to non-ASNP members,
ASNP's 2008 program attracted more
than 100 attendees plus nine sponsors and exhibitors.

Program Chairperson Frank Johns, ASNP's founders and
ASNP's staff are to be congratulated for maintaining the high
educational standards ASNP established in 2007. In addition to the
excellent presentations, ASNP's educational program featured detailed
and valuable handout materials in hardcopy and CD ROM formats. The 2008
ASNP program was noteworthy, in part, because it offered multiple
presentations highlighting settlement planning and structured
settlement issues - many of which S2KM identified and recommended in S2KM's summary of ASNP's 2007 Annual Meeting.

Several ASNP program presentations featured members of the Society of Settlement Planners (SSP). In addition to Johns, SSP member presenters included Michele Whitmore, Tim Nay, Jack Meligan, Joseph Tombs, David Lillesand and this blog's author, Patrick Hindert. Several additional SSP, National Structured Settlement Trade Association (NSSTA) and National Association of Settlement Purchasers (NASP) members participated as sponsors, exhibitors and/or attendees.

Summary of the 2008 ASNP Annual Meeting

Families Helping Families - ASNP's "extra-curricular" program in
New Orleans featured a social service project where 30 ASNP conference
attendees assisted Families Helping Families
of Southeast Louisiana repair and improve its office headquarters. Many
special needs professionals have disabled family members. Their
commitment to disabled persons is genuine. The ASNP work project
represented a hands-on demonstration of their commitment and
complemented the participation and support NSSTA and SSP provided
earlier this month in Washington, D.C. for the AAPD Leadership Gala Dinner.

Special Needs Trusts for Wealthy Families - Michael Gilfix
opened the ASNP Educational Program with a detailed analysis of the
challenges facing special needs planners whose clients include wealthy
families with disabled members. Gilfix's analysis addressed the
meanings of "wealth" and "disability" in the context of public benefits
as well as planning considerations to meet the cost of care and
services for such clients.

Special Needs Financial Planning - Two financial planners, Cynthia Haddad and Sal Salvo,
offered an overview of comprehensive special needs financial planning.
Haddad reviewed sample case studies from a book she co-authors. Salvo
discussed the role of life insurance and shared his experience of
caring and planning for his own disabled child.

Secondary Life and Annuity Markets - This blog's author
introduced ASNP members to life settlements, structured settlement
transfers and Medicaid annuity transfers. Issues addressed included
secondary market history, public policy considerations, existing laws
and regulations, and reactions from the primary markets - as well as
the professional responsibilities and planning options for special needs attorneys.

Prudent Investment - William Browning discussed the
management role and investment duties of trustees for special needs
trusts. Browning's presentation highlighted the general impact of
the Uniform Prudent Investor Act (UPIA) for trustees in the context of
modern portfolio theory as well as recent litigation against trustees. Browning's presentation did not mention structured settlement
annuities.

Ethical Pitfalls for Attorneys Acting as Fiduciaries - Frank Johns
addressed ethical challenges special needs attorneys encounter when
representing a fiduciary or serving as self-appointed fiduciaries.
Johns' commentary included consideration of the ABA Model Rules of
Professional Conduct, the NAELA Aspirational Standards and the ACTEC
Commentaries to the Model Rules of Professional Conduct.

Difficult Trust Beneficiaries - Patricia Dudek and Cynthia Barrett
shared their personal experiences and recommendations for special needs
attorneys and trustees who encounter difficult trust beneficiaries
including distribution authority and strategies for avoiding
professional liability.

Trusts and the Funding of Tort Recoveries - Michele Whitmore
reviewed the relationship of structured settlements and special needs
planning from a settlement planning perspective. Whitmore summarized
the history of structured settlements and highlighted various abuses
including how "over-structuring" has contributed to the development of
the secondary annuity market. Whitmore recommended a collaborative and
plaintiff-controlled settlement planning strategy based upon damage
analysis, 468B Qualified Settlement Funds, Medicare Set-Aside
Arrangements and Special Needs Trusts.

Settlement Planning and Special Needs Planning - Tim Nay moderated a panel discussion featuring Jack Meligan and Joseph Tombs
that highlighted collaboration opportunities for settlement planners
and special needs attorneys. Meligan differentiated needs-based
settlement planners from product-based structured settlement
intermediaries. Meligan criticized defendants who seek to control or
restrict any claimant's right to select his or her own settlement
advisors and products. He summarized the mission and history of the
Society of Settlement Planners (SSP) and noted the recently
adopted SSP Standards of Professional Conduct. Tombs outlined the SSP
Registered Settlement Planner(RSP) certification program and
distinguished a settlement planner from a plaintiff structured
settlement broker.

Personal Injury Litigation - Evan Krame and Diedre Wachbrit
offered advice and recommended guidelines for special needs attorneys
who work with trial attorneys. Their presentation included advice for
special needs attorneys about structured settlements and
structured settlement advisors. They also identified several trust
companies that currently offer special needs trust services.

Why Fiduciaries Get Sued - Richard Milstein and Frank Johns
examined several areas of trustee liability and discussed special needs
trust case studies that highlighted areas of greatest risk for
trustees. Milstein and Johns included their own list of the top ten
reasons special needs trustees are sued as well as their recommended
remedies.

SSI Rules for Trust Administration - Ken Brown and David Lillesand
discussed current Supplemental Security Income (SSI) rules and issues
impacting the administration of special needs trusts. Brown summarized
the general SSI rules for disbursements from trusts as well as specific
rules relating to home ownership. Lillesand outlined the sources of SSI
law and summarized trust administration and trust creation issues. Both
Brown and Lillesand addressed structured settlements. According to
Brown, the Social Security Administration (SSA) has identified
structured settlements for future POMS but they are not currently a
priority. According to Lillesand, the lack of structured settlement
POMS continues to pose a risk for those claimants and their attorneys
who attempt to fund special needs trusts with structured settlement
annuities. If and when structured
settlement POMS are drafted, Lillesand recommended the POMS should also address secondary market annuity
issues.

Section 8 Housing and Special Needs Trusts - Kevin Urbatsch
explained why special needs trusts and Section 8 Housing rules are not
fully compatible. According to Urbatsch, some local public housing
agencies (PHAs) are taking the position that every distribution from a
special needs trust qualifies as income for the Section 8 recipient
including distributions for medical expenses. This result can cause the
elimination of a Section 8 voucher. Re-qualification for Section 8 may take months
or even years.

March 12, 2008

The Society of Settlement Planners (SSP) hosted its 2008 Annual Meeting in Washington, D.C. on March 5-7. Approximately 75 persons attended the SSP meeting
including settlement planners, special needs attorneys and annuity
provider representatives. Under direction from 2007 SSP President
Anthony Alfieri and Program Chairperson Jack Meligan, SSP's 2008
educational program matched the high standards of previous
SSP programs.

During SSP's business meeting, SSP members:

Adopted the "Standards of Professional Conduct for Settlement Planners"; and

Elected new officers and directors .

SSP elected Greg Maxwell as 2008 President and Joseph Tombs as SSP Vice President.

Nay, the first-ever President of
NAELA, is also the first-ever special needs attorney to serve on SSP's
Board of Directors.

SSP's Educational Program

Ethics

The SSP Code of Ethics (titled:
"Standards of Professional Conduct for Settlement Planners") represents
a multi-year SSP project initiated and managed by SSP Director and
attorney Richard Risk.

Carl A. Pierce, distinguished professor of law
at the University of Tennessee and a reporter for the latest revision
of the American Bar Association's Model Rules of Professional Conduct, assisted SSP with this ethics project.

Pierce introduced drafts of SSP's Code of Ethics at both the 2007 and 2008 SSP Annual
Meetings.

Frank Johns, a leading special needs attorney and
settlement planning ethicist, also advised SSP on its Code of Ethics. Johns, an SSP member, delivered SSP's
featured dinner address. Johns' comments focused on ethical
considerations for judges, plaintiff attorneys and trustees when
selecting a structured settlement or settlement planning professional. Johns' 2008 SSP presentation also featured his proposed Request
for Proposal (RFP) for settlement planners. Johns first introduced his ideas for a settlement planner RFP at the 2007 Advanced Elder Law Institute.

Tax Panel

Organized
by structured settlement attorney and moderator Richard Risk, SSP's Tax Panel has become the best tax discussion in the structured settlement industry.

In addition to Risk, SSP's 2008 tax panel participants included:

Jody J. Brewster, Tax Partner with Skadden Arps Slate Meagher & Flom;

Glenn F. Mackies - Tax Partner at Deloitte & Touche.

Michael J. Montemurro - Branch Chief at the Internal Revenue Service responsible for Income Tax and Accounting;

The SSP tax panel addressed several topics with single claimant 468B receiving the most attention. The structured settlement
industry is waiting for written guidance from the United States
Treasury Department as to whether IRC section 468B applies to
single claimant cases. SSP's tax panel provided a detailed look
at these single claimant468B issues:

The language in IRC section 468B and existing regulations;

Technical and policy Issues created by the language;

Technical and policy arguments for and against single claimant 468B funds;

Impact of economic benefit on single claimant and multiple claimant 468B funds;

Defining single claimant and multiple claimants within IRC section 468B.

Government Benefits -SSP devoted three presentations to government benefit issues.

Medicaid

David
Lillesand, a national leader among social security and special needs
trust attorneys, dropped a bombshell on the structured settlement
industry at the SSP meeting.

Lillesand
said he expects the SSA to issue new POMS within the next few weeks.

However, the new POMS will not address
structured settlements. Lillesand stated "The SSA Office of General
Counsel will not approve structured settlement POMS at this time".

Lillesand and Ken Brown of the SSA will be featured speakers at the ASNP 2008 Annual Meeting March 27-29 in New Orleans.

Lillesand's
2008 SSP presentation focused on the "life or death" issue of Medicaid insurance
for disabled persons - plus the challenges and risks for special needs attorneys
who recommend annuities as funding and investment options.

S2KM's original post above failed to report two important events from the SSP meeting:

David Synder - SSP honored Snyder as a founding member of the Society of Settlement Planners and historic leader among settlement planners and structured settlement professionals. Snyder recently announced the sale of his former company Delta Settlements to Michael Upchurch.

AAPD Leadership Gala dinner - The 2008 AAPD Gala was even better than advertised and raised more than $1 million. Both SSP and NSSTA members attended. NSSTA was an event sponsor.